CROWN COURT RULES (Hansard, 25 November 1971)

§ Mr. S. C. Silkin (Dulwich)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Crown Court Rules 1971 (S.I., 1971, No. 1292), dated 3rd August 1971, a copy of which was laid before this House on 16th August, in the last Session of Parliament, be annulled. We are about to discuss the first set of rules under the Courts Act, 1971, in respect of the new Crown Court, which will come into operation at the end of 1972. I make no apology for bringing the rules before the House. Not only 1696 are they a departure in practice in bringing together a series of rules on criminal practice and procedure, but they also represent a beginning, a sort of hors d'oeuvre for the main meal to come.

In our consideration of the Act in Committee, I said, when we were discussing the Clause concerned, that it was desirable that all the matters which come within the heading of practice in the Crown Courts should be incorporated in the rules, even if they form part of earlier Statutes which are not repeated or re-enacted in some way, so that we do not have to look in two places—Archbold in the text, and the Crown Court rules—in order to find what is the rule or what are the different rules on a particular topic. I recognise that the process of incorporating all such matters into the rules may not be put into operation immediately; it may take time for the Rule Committee … to collect the various procedural matters which are at present dealt with in other ways. But I hope that the Government will accept the principle that gradually we should embody within the rules the complete code of procedure dealing with the Crown Court rules. The Under-Secretary of State for the Home Department, then in charge of the Bill in Committee, said in reply: It is certainly hoped that as much as possible will go through in the rules made under the Clause, and what he"— the hon. and learned Gentleman was referring to me— has just said is the intention of the way in which it should work in practice."—[OFFICIAL REPORT, Standing Committee A, 11th February, 1971; c. 202.] In these rules a number of matters are dealt with, particularly those specifically referred to under the provisions of Section 14(2), and perhaps a little wider than that. They appear to be very much a beginning. I hope that the Attorney-General, whom I welcome back from his travels, will be able to give an assurance that what his hon. and learned Friend said would happen is in process of taking place and that gradually we shall see a complete body of criminal practice and procedure incorporated in a Crown Court White Book, as it were, which it would be easy for the practitioner to look up without having to go from one work of authority to another to find the practice and procedure in relation to a particular matter.

Perhaps in that context I might refer to one aspect of the rules. I observe, and I welcome, that in rule 7, governing 1697 notices of appeal to the Crown Court, it is provided that the period for notice of appeal shall be 21 days. In Part II of Schedule I there are amendments to various enactments the effect of which is to alter whatever be the period for appeal set out in those enactments to the common period of 21 days. I take it that that is the effect of Part II of Schedule 1.

While it is desirable that there should not be a different period in respect of different appeals, I hope that when we advance a little further towards having a Crown Court White Book we shall be able to discover these matters in some easier way than by cross-references under the Schedule to other enactments telling us that in each of these we must substitute "21 days" for "one month", or whatever the period may be. I am sure that the right hon. and learned Gentleman will readily agree that that is a difficult and unsatisfactory way of achieving a general rule.

There is one other general matter, namely, the bringing into operation of the new procedure and the new court. I hope that the Attorney-General will be able to tell the House a little about how matters are proceeding. We are now within not much over a month from the day on which the Crown Court will come into operation. We have not heard much about it since the Act became law, and it would be valuable if he could tell us what progress has been made and whether any difficulties have been encountered.

Now, a question regarding the new-style recorders. I am one of the old-style recorders whose term of office will come to an end at the end of this year. The noble Lord the Lord Chancellor has made certain rules and conditions for the new-style recorders—perhaps, rather less flexible than those of us who read the Beeching Report expected—and, in particular, a rule that a new-style recorder must undertake that he will be available at some specific period in the future for not less than a consecutive fortnight. To what extent, if at all, has that acted as a brake on the supply of new-style recorders of the quality one hopes will be secured? It is extremely difficult for the busy practitioner, even with the qualification which the Lord Chancellor put upon 1698 that condition, to give such an undertaking.

I raise the question for this reason. I understand—the Attorney-General will correct me if I am wrong—that, although the Lord Chancellor imposed that rule when he invited applications for the posts of new-style recorder, in at least one of the new circuits potential applicants have been told that, in practice, the rule will not be followed and that, if they are unable to fulfil the condition, they will be able to call upon other new-style recorders to fill the gap created by their inability to comply with the requirement to give a consecutive fortnight.

If that be so, it would seem to suggest that there has been some difficulty in attracting the appropriate numbers and quality of applicants. Moreover, it would seem unfortunate that there should be one rule in one circuit area and a different rule in others. One hopes that the rules will be the same throughout. Perhaps the Attorney-General will say something about that in telling us generally about progress towards the establishment of the new court.

I come now to some more detailed points. I apologise to the right hon. and learned Gentleman if any of them take him by surprise, and I assure him that, if they do, I shall be happy to have an answer in writing later if he cannot give it now.

Rule 4 covers certain dispensations from the requirements governing the composition of the court, and paragraph (2) provides: The Crown Court may at any stage continue with any proceedings with a Court from which any one or more of the justices initially comprising the Court has withdrawn"— that seems perfectly sensible, but it goes on— or is absent for any reason". I find that difficult to follow because it would appear to suggest that a justice could be absent for a time and then return and still take part in the decision. I cannot believe that that is the intention. If it is not, why are those words included?

Rule 5 deals with disqualifications of justices from sitting in the Crown Court on hearing of appeals in matters on 1699 which they have adjudicated or proceedings on committal for sentence. We welcome this provision, which follows largely what my hon. Friends suggested in Committee, although perhaps it does not go as far as we suggested.

I have only one matter of detail to put in this connection. The Attorney-General will observe that the disqualification applies in the case of committals under Section 28 or Section 29 of the Magistrates Courts Act, 1952—and that is for borstal or indictable offences which are tried summarily in the case of defendants over 17—but in Rule 5, as distinct from rule 3(4), there is no provision for bringing in Section 67 of the Mental Health Act, although one would have thought that the same principle would apply to the disqualification in relation to Rule 5 as in relation to the hearing of an appeal under Rule 3(4). Is that an inadvertence or is it intentional?

We welcome rule 6. The effect of this rule and Schedule 1 is to provide a general period of 21 days for appeals, and I have already suggested that we might in future get rid of the cross-reference procedure. But if 21 days is right in respect of an appeal of any kind to the Crown Court, whether from the magistrates' court or any other tribunal, I find it difficult to follow why, when we come to rule 21, which deals with the case of an application to the Crown Court to state a case on a question of law, it is considered that 14 days is an adequate time.

I would have thought that if one is dealing with a question of law and must make a decision, which no doubt in many cases would require advice from counsel, as to whether an application should be made for a case to be stated to the High Court, one would normally require more rather than less time than the period given, for an appeal from conviction or sentence from the magistrates court to the Crown Court. This may simply be following the present procedure. If so, I hope the Rules Committee will consider whether that length of time is not unreasonably short in the circumstances.

Rules 7, 8 and 9 refer to notice of appeal and abandonment of appeal. It is rather strange that Rules 7 and 9 both impose upon the appellant himself the 1700 duty of delivering his notice, whether of appeal or of abandonment, not only to the court but also to the other party to the appeal. Why cannot that be done by the court? In Rule 8, provision is made that on receiving the notice of appeal, the appropriate officer of the Crown Court is required to give notice of time and place of hearing both to the appellant and to any other party to the appeal. In that case, why cannot the court at the same time inform the other party to the appeal of the notice of appeal? Similarly in regard to abandonment, which is covered by Rule 9, why cannot the court inform the other party to the abandonment?

I mention that in particular because the belief that before enactment of the Courts Act that was the law regarding abandonment under Section 85(1) of the Magistrates' Courts Act, 1952. That was repealed, however, and for some reason this duty, which previously fell upon the court, has now been placed upon the appellant. It seems an unnecessary burden to ask the appellant to take over.

I have one small but, possibly, important point on Rule 17(2), which makes a provision subject to paragraph (8) of that rule. The Attorney-General will see that paragraph (8) does not exist. It appears as though this is an error for paragraph (7). Perhaps it cart be corrected in the reprinting of the rules. From reading the rule, it appears that it must apply to paragraph (7) concerning assignment of the Official Solicitor.

Rule 9 is a provision for which we on this side of the House pressed in Committee. It sets time limits both for the shortest possible period and for the longest possible period from committal to the time when the trial at the Crown Court should begin. Speaking for myself, the period of 14 days and eight weeks, respectively, seem to be reasonable and should ensure that the extensive delays which, unfortunately, occur from time to time are very much curtailed.

The only qualification on the period of eight weeks is that it applies unless the Crown Court has otherwise ordered. Thus the Crown Court has, apparently, an unfettered discretion to extend the period of eight weeks. I would have preferred that in those circumstances, if the court exercises that power, it should be required to state the reasons for doing so. It 1701 may be that this can be required by a practice direction. I suggest that it would be a valuable piece of procedure, because the situation might arise that it became almost automatic for the Crown Court to order otherwise if it found that it was inconvenient for the trial to begin within the period of eight weeks.

These points with which I have been dealing in the second part of my remarks are admittedly matters of detail, but I think it is right that we should examine this first set of rules with some thoroughness and care because they are the precursor of what we hope will be something very much larger and more fundamental. Section 14 of the Act provides that the Crown Court rules may be made for the purposes of regulation and prescribing, as I understand it, the whole procedure and practice to be followed in the Crown Court. We hope that it will not be long before we have rules going as widely as possible. In the meantime, we welcome the rules now before us as a first instalment.

§ The Attorney-General (Sir Peter Rawlinson)

One of the quirks of our procedures is that the hon. and learned Member for Dulwich (Mr. S. C. Silkin), while welcoming these rules, in the design of which he has played some part, has to pray that this House should immediately dismiss them. He has rightly said that this gives an opportunity for examination and discussion of the first of the rules which herald the new procedure which will begin in January. I share the belief that it is right that we should look at them and that I should be able to tell the House a little of the general matters as to the organisation, both in respect of judges available, particularly the new style recorders, and in respect of accomodation and staff before coming to the details of the rules.

These rules are to assist in the bringing into force of this new procedure, which will be strange to many people. I can tell the House that my noble Friend the Lord Chancellor is reasonably satisfied with the arrangements that have been made and which have been proceeding in preparation for the start of the new system in January. The hon. and learned Gentleman spoke of the recorders who will be those part-time judges who will 1702 support the High Court judges and the Circuit Bench. A total of 175 judges of different descriptions will become circuit judges. Some 25 appointments have been announced and more are under consideration. They will form the main body of those who will carry out the duties. of the Circuit Bench in the Crown Courts. They will be supported by the new style recorders. There will be 275 recorders, of whom 175 have been announced and about 90 or 100 are to be announced. Undertakings have been given by those who have accepted that they will give a minimum of 20 days. It is particularly gratifying that many of those have public-spiritedly offered to give more than 20 days. The more recorders who can give more than 20 days the better for the whole system. It is with reasonable confidence that I can tell the House that as far as the part-time judiciary is concerned, which depends upon the public spiritedness of the new style recorders, the situation looks to be satisfactory.

Accommodation has always been a problem. The need for more courts has been spoken of by Attorney-General after Attorney-General and Lord Chancellor after Lord Chancellor.

Recently there has been a considerable increase in emergency accommodation, particularly in and around London. There has been provision for ten courts, three further courts by Easter and ten more thereafter. The long term building programme is indeed long term and must be so, but it is right to say that local authorities have been helpful and co-operative. In regard to the right of user given by the Act, arrangements for the sittings of the High Court and the Crown Courts have all been made for next year without the necessity to give directions.

My noble friend's approach on acquisition is that there should be agreement rather than the use of compulsory powers. The situation appears to be satisfactory in the coming year, always hoping that the extra courts will be available to be used to cope with the serious problem which remains in the dispatch of criminal business in and around London.

The question of staff in the unified service which has been introduced is always a problem since, of necessity, it deals with human beings many of whom have had former service. There is a 1703 natural desire on their part to ensure that their terms and conditions of service do not deteriorate. Assurances have been given and there has been an undertaking that if cases of hardship arise under the new arrangements providing for the new court service, they will be looked at. On balance the new service should give greater opportunities and in that respect has attracted people to it. It would appear there has been a response among former officers of courts to enter the new service and that recruitment has been proceeding satisfactorily.

I come to the rules which will have to be carried out to ensure that the new system works. The hon. and learned Gentleman said he hoped to see a complete outline of criminal practice and procedure set out in a Crown Court White Book. Perhaps at some time when these rules appear they will be consolidated into a kind of practitioner's textbook. This will avoid the kind of difficulties that arise when a large amount of cross references are involved. Therefore, we shall hope to see the creation of the kind of White Book which has been suggested.

The other general point put by the hon. and learned Gentleman was in regard to the notice of appeal of 21 days. I will deal in a moment with the 14 day period laid down for a case to be stated, which is another aspect of the matter. The hon. and learned Gentleman generally welcomed the fact that there should be some uniformity in the matter of notice of appeal and the 21 days as provided by the rules.

I wish to point out that there are two misprints in the rules, and the hon. and learned Gentleman has referred to one of them. In Rule 17(2) there is a wrong reference to paragraph (8) when it should be paragraph (7). Then there is a misprint, which is corrected on the front page of the rules, where "The Firearms Act" instead of appearing opposite Section 24, ought to appear opposite the words "In Schedule 5".

The rules set out the various provisions. Rule 4 provides that the court may continue to sit, where it consists of a judge and justices, if one justice withdraws and even if both withdraw. It provides also that if one of them is absent for any reason, the whole of the trial should not be prevented from continuing 1704 because of that person's absence, as opposed to his conscious withdrawal. There is no provision that once a justice withdraws or is absent, he can then come back and act as part of the court. Obviously that would be wholly wrong. Once a person has withdrawn or is absent, that is the end of his participation in the trial.

The hon. and learned Gentleman then raised a point about the Mental Health Act. This concerns Rules 3, 4 and 5. A committal made under Section 67 of the Act does not indicate the decided view on the sentence to be imposed, and therefore there is no reason why the committing justices should not sit. That is the reason for the slight difference there.

The hon. and learned Gentleman compared Rule 6 with Rule 21, dealing with the case stated and the period of 14 days. Rule 21 makes similar procedural arrangements to those in Section 20 of the Criminal Justice Act, 1925 about applications to the Crown Court to state a case. The time limit is 14, days which is the same period as that allowed in the case of an application to a magistrates' court to state a case. It should be remembered that an application to state a case does not call for any more than that. The case has to be stated thereafter. This is really carrying on the old procedure whereas under Rule 7, there is a provision for 21 days in the case of appeal.

It is reasonable that an appellant should be required by rule to inform the other party. He is the person who, at that time, has had entered against him a verdict or decision of the court. The other party may be involved in expense if he is not advised at the earliest moment. If it is only done through the court, it means a delay of some 24 hours. Therefore, it is only reasonable that the appellant should be obliged to inform the other party.

The hon. and learned Gentleman thought that Rule 19, with regard to the time limit, was reasonable. This refers to the 14 days and the 8 weeks. I hope that we shall be able to report in the future that these time scales have been kept to. It is asking a considerable amount that they should be set in this pattern. We have done it deliberately. This is what we seek and what we hope will be obtained, because of the necessity 1705 of having criminal justice properly expedited and dealt with within a reasonable time, so that a person who is accused should stand his trial without undue delay.